Heard v. Hannah et al

Filing 22

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/24/2014. (JLC)

FILED
2014 Sep-24 PM 03:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ERVIN HEARD,

)
)
Plaintiff,
)
)
v.
)
)
BIBB COUNTY SHERIFF KEITH )
HANNAH, in his official capacity
)
Defendants.
)
)

Case No.: 7:13-CV-1998-VEH

MEMORANDUM OPINION
This is a civil rights action brought pursuant to 42 U.S.C. § 1983, in which the
plaintiff, Ervin Heard, brings claims against the Bibb County, Alabama, Sheriff, Keith
Hannah, in his official capacity, alleging violations of the Fourteenth Amendment,
and under Alabama state law, in connection with the termination of the plaintiff’s
employment. (Doc.1). The case comes before the court on Hannah’s motion, pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss all claims for
money damages due to lack of subject-matter jurisdiction, and, pursuant to Rule
12(b)(6), to dismiss all other causes of action for failure to state a claim upon which
relief may be granted. (Doc. 12). Also included in Hannah’s filing is a Rule 12(f)
motion to strike certain allegations of the plaintiff’s pleading, as well as a demand for
attorney’s fees under 42 U.S.C. § 1988.

On August 28, 2014, the magistrate entered a report and recommendation and
recommended:
[T]hat Defendant Hannah’s motion (Doc. 12) be DENIED to the extent
it asks the court to strike certain allegations of the Amended Complaint
pursuant to FED. R. CIV. P. 12(f), be GRANTED insofar as it seeks
dismissal of Plaintiff’s claims for damages and backpay for lack of
jurisdiction under FED. R. CIV. P. 12(b)(1); be GRANTED insofar as
seeks dismissal of all remaining claims pursuant to FED. R. CIV. P.
12(b)(6); and be DENIED as it relates to an award of attorney fees
under 42 U.S.C. § 1988.
(Doc. 19 at 25-26) (emphasis in original).

The time for objections to the

recommendation has expired and no objections have been filed by any party.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation, the court is of the opinion that the
magistrate judge’s report is due to be and is hereby ADOPTED and his
recommendation is ACCEPTED. The Court EXPRESSLY FINDS that plaintiff's
claims for damages and backpay are due to be dismissed for lack of subject matter
jurisdiction, and that his remaining claims are due to be dismissed because they fail
to state a claim upon which relief may be granted.1 The court also finds that no

1

The court agrees with the magistrate’s conclusion that, even if Hannah terminated the
plaintiff’s employment because of “rumors” that the plaintiff intended to run to replace Hannah,
that does not create a First Amendment claim under section 1983. See doc.19 at 16. The
Eleventh Circuit has been clear that a threshold requirement for any First Amendment claim is
“the employee’s speech.” Battle v. Bd. of Regents for Ga., 468 F.3d 755, 760 (11th Cir.2006).
An allegation of “rumors” is not the same as an allegation that the plaintiff engaged in speech.
2

allegations in the amended complaint are due to be stricken and no attorney’s fees
should be awarded.
An order of dismissal will be entered.
DONE and ORDERED this 24th day of September, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

3